Common law marriage allows a couple to be considered married in the eyes of the law despite never having a marriage license or wedding ceremony. South Carolina has abolished this type of marriage in the state and established rules that govern how prior common-law marriages will now be recognized. Suppose you previously were considered common law married. In that case, it’s important to understand how this recent change will affect other issues arising from the marriage, such as alimony and child custody. Our experienced Greenville family lawyers can help you.
What Is a Common Law Marriage?
Marriages typically occur when a couple obtains a marriage license and has a wedding ceremony where the new spouses exchange their vows. With a common law marriage, a couple may be considered married even without these two formalities, provided that:
- The marriage is legal: The parties are not already married, not too close in kinship (e.g., brother and sister), and not underage.
- Cohabitation: The parties must live together, otherwise known as cohabitating together.
- Intent to be married: Formally or informally, the parties must be in agreement and have a plan to be married to each other.
- Reputation: Common law married couples must hold themselves out to the community as being married.
Is South Carolina a Common Law Marriage State?
On July 24, 2019, the state Supreme Court abolished common law marriage in South Carolina.
In a decision known as Stone v. Thompson, the Court declared that “from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license.” The decision cited a number of reasons for its ruling, including how common non-marital cohabitation has become.
In using the term “prospectively,” the Supreme Court made it clear that its decision does not apply retroactively to common-law marriages that were recognized before 2019. In other words, couples who entered into a common law marriage in South Carolina before July 24, 2019, will still be viewed by the state as being married. That means these couples can continue to file their state and federal tax returns under the status of either “Married, Filing Jointly” or “Married, Filing Separately.”
Proving a Common Law Marriage
The South Carolina Supreme Court used its decision to establish standards for handling litigation involving couples whose pre-2019 common-law marriages will continue to be recognized. In any divorce case, it must first be shown that the parties were married. This is more complicated when the marriage lacks the formality of a license and ceremony. The Court decided that proving the existence of a common law marriage requires “clear and convincing evidence.”
This standard falls far short of the “beyond a reasonable doubt” requirement of a criminal conviction but is more certain than “more likely than not” (also known as the preponderance of the evidence standard). A party wishing to establish a common law marriage may use evidence like that. However, the evidence must specifically demonstrate mutual intent, meaning one spouse cannot say they were common law married while the other says they were merely cohabitating.
Some specific pieces of evidence that may be used in proving common law marriage include:
- Joint bank accounts
- Jointly owned real property
- Life insurance policies in which one spouse names the other as a beneficiary
- Birth certificates listing the spouses as the parents of children
- Tax statements in which the spouses file as married
- Anything in which the parties sign the same last name, like a lease agreement
How Does a Common Law Marriage in South Carolina Affect Custody and Related Matters?
Since the Supreme Court decision leaves intact those common-law marriages that existed before 2019, it raises the question of what happens when common-law married couples separate and divorce. Here are a few specific issues affected by the decision:
Ability to remarry
If a couple is considered married under the common law, they must divorce before either party can remarry. Failing to do this could cause a spouse to commit bigamy. Therefore, if you believe you are in a common law marriage that existed before July 24, 2019, speak with an experienced Greenville, SC, divorce lawyer.
Alimony
Alimony is a form of spousal maintenance that requires a supporting spouse to pay the dependent spouse money. The intent is to ensure that the divorce does not financially devastate a partner who has become accustomed to the support that existed in the marriage. Alimony is typically not available to non-married couples who separate, but it may be required for a common-law married couple who gets a divorce.
Asset and debt division
Married couples contribute jointly to acquiring money and property, and these assets (along with marital debt) must be divided upon divorce. Property and debt follow title if a couple is not considered married. For example, Whoever has their name on the house gets to keep it.
Therefore, if a couple is only deemed unmarried and cohabitating, they cannot seek this asset and debt division, which is known as equitable distribution in South Carolina.
Child custody
When an unmarried couple has a child, the mother has sole custody by default. The father must take certain legal steps to have parental rights. However, a father has equal rights to the mother if the couple is considered married under the common law.
Protecting Your Family Law Rights in Greenville, SC
It’s important to consider entering a formal marriage to protect your parental and financial rights.
But if you were common law married before 2019 and you have questions about how that marriage or divorce may affect you, it’s time to call Attorney J. Michael Turner, Jr. and Turner Family Law. Contact us today.
